Citation Nr: 0818023
Decision Date: 06/02/08 Archive Date: 06/12/08
DOCKET NO. 07-07 362 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for right ankle strain.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on periods of active duty to include from
October 2003 to November 2004.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a June 2006 rating
decision by the Department of Veterans Affairs (hereinafter
VA) Regional Office in North Little Rock, Arkansas,
(hereinafter RO).
In February 2008, a hearing was held before the Veterans Law
Judge signing this document, who was designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A.
§ 7107(c) (West 2002).
FINDINGS OF FACT
1. The competent medical evidence weighs against a
conclusion that the veteran has tinnitus as a result of
service.
2. In a statement received in February 2008, the veteran
withdrew his appeal with respect to the claim for service
connection for right ankle strain.
CONCLUSIONS OF LAW
1. Tinnitus was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002);
38 C.F.R. § 3.303 (2007).
2. The criteria for withdrawal of the substantive appeal by
the veteran with respect to the issue of entitlement to
service connection for right ankle strain have been met.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005)), imposes obligations on VA in terms of its duties to
notify and assist claimants. First with regard to the duty
to notify, prior to initial adjudication, in a letter dated
in November 2005, the RO advised the claimant of the
information necessary to substantiate the claim adjudicated
herein. He was also informed of his and VA's respective
obligations for obtaining specified different types of
evidence. See Quartuccio v. Principi, 16 Vet. App. 183
(2002). He was also told to provide any relevant evidence or
information in his possession. See Pelegrini v. Principi, 18
Vet. App. 112, 120-21 (2004) (Pelegrini II). As such, the
Board finds that the duty to notify has been satisfied.
VA also has a duty to assist the veteran in the development
of the claim. This duty includes assisting the veteran in
the procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has
obtained the service medical records and made reasonable
efforts to obtain relevant post-service records adequately
identified by the veteran. Specifically, the information and
evidence that have been associated with the claims file
includes VA treatment records, and the veteran's own
statements and evidence he presented. The veteran has also
been afforded VA examinations to determine if he has tinnitus
as a result of service. Thus, the Board finds that all
necessary development has been accomplished, and therefore
appellate review may proceed without prejudice to the
appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Significantly, neither the appellant nor his representative
has identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
resolution of the claim adjudicated herein that has not been
obtained. Hence, no further notice or assistance to the
appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim adjudicated herein.
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143
(2001); see also Quartuccio v. Principi, 16 Vet. App. 183
(2002).
II. Legal Criteria/Analysis
A. Tinnitus
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304.
Where there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R. §
3.303(b). When a condition noted during service is not shown
to be chronic, or the fact of chronicity in service is not
adequately supported, then a showing of continuity of
symptomatology after discharge is required to support the
claim. Id. Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The Court has held that, in order to prevail on the issue of
service connection, there must be medical evidence of: (1) a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet. App.
247, 253 (1999).
The veteran contends, including in testimony at the February
2008 hearing before the undersigned, that he suffers from
tinnitus as a result of detonations of improvised explosive
devices while he was on patrol in Iraq. His DD Form 214 from
his active duty from October 2003 to November 2004 indicates
that he served in the United States Army as a combat engineer
during this period, and the awards, decorations, and other
information listed on this document reflects service in Iraq.
A statement supporting this assertion was submitted in August
2006 by an Army comrade who stated that he served with the
veteran during the events in question. When a wartime
veteran alleges he suffers disability due to an injury
incurred in combat, 38 U.S.C.A. § 1154(b) must be considered,
permitting the veteran's undocumented assertions regarding
combat-related injuries to be accepted as true if consistent
with the time, place and circumstances of such service.
Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v.
Brown, 8 Vet. App. 563 (1996). Given the above, the Board
accepts as true the statements of the veteran with regard to
the acoustic trauma from the asserted in-service explosion,
as there is documentation of exposure to combat, and his
statements are consistent with the nature of the described
service in Iraq.
The analysis required by 38 U.S.C.A. § 1154(b) applies only
as to whether an injury or disease was incurred or aggravated
at that time, i.e., in service. It does not apply to the
questions of whether there is a current disability or a nexus
connecting any current disability to service. See Collette,
Gregory, supra. In this case, the veteran denied having
tinnitus on his post deployment questionnaire and at a
private medical examination within a year of service
separation in March 2005. Moreover, in November 2005, a VA
examiner who was asked to clarify the record as to whether
the veteran has tinnitus as a result of service concluded as
follows:
The evidence of record does not support
the presence of the symptom of tinnitus
after deployment or as recently as March
2005. Both the post deployment health
questionnaire as well as the civilian
hearing test form are negative for the
symptom. The documented evidence of
record indicates that the symptom may
have been acquired after March[] 2005.
The evidence of record is that that
tinnitus due to acoustic trauma while on
active duty is less likely than not. The
evidence of record is that tinnitus is
more likely than not due to noise
exposure after service and not a
consequence of acoustic trauma while in
service.
While the veteran disagrees with negative opinion set forth
above, a layperson is not qualified to render a medical
opinion regarding the etiology of disorders and disabilities.
See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu
v. Derwinski, 2 Vet. App. 492, 494-5 (1992) (finding that
competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions). The Board has also considered the testimony from
the veteran that he did not report having ringing in his ears
at his post deployment examination to expedite his discharge
from the military as well as his rationale for why the March
2005 private audiologist's report did not reflect ringing
ears. Nonetheless, such contemporaneous statements of
record, as opposed to his more recent assertions with regard
to tinnitus, are more inherently credible and are of
significant probative value. See, e.g., Struck v. Brown, 9
Vet. App. 145, 155-56 (1996). In making this determination,
the Board recognizes the veteran's valorous service and the
fact that the nature of his duties in Iraq must necessarily
have included exposure to explosions. However, the competent
medical evidence of record simply weighs against a conclusion
that he has tinnitus that is the result of service. See
Collette, Gregory, supra.
In view of the foregoing, the Board finds that the probative
value of the positive evidence represented by the lay
assertions submitted by and on behalf of the veteran is
outweighed by the negative evidence of record. Therefore, a
reasonable doubt is not raised in this case, and, the claim
for service connection for tinnitus must be denied. Gilbert,
1 Vet. App. at 49.
B. Right Ankle Strain
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A substantive appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202. Withdrawal may be made by
the veteran or by the authorized representative. 38 C.F.R.
§ 20.204. The veteran in a statement received in February
2008 withdrew his appeal with respect to the issue of
entitlement to service connection for right ankle strain and,
hence, there remain no allegations of errors of fact or law
for appellate consideration with respect to this issue.
Accordingly, the Board does not have jurisdiction to review
the appeal as to this issue and it is dismissed.
ORDER
Entitlement to service connection for tinnitus is denied.
The claim for entitlement to service connection for right
ankle strain is dismissed.
____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs